E 

93 

.143 

2nd  ser. 
no.  22 


39031027481100 

The  Attorney-General  and  seven  Indian 
policemen  of  Cheyenne  River  Agency  :  a 
case  where  to  serve  faithfully  came  near 
meaning  the  gallows 

DOES  NOT  CIRCULATE 


[No.  22. — Second  Series,  3000.] 


Indian  Rights  Association, 

1305  Arch  Street, 

Philadelphia,  March,  1895. 


The  Attorney-General  and  Seven  Indian  Police¬ 


men  of  Cheyenne  River  Agency— A  Case 
where  to  Serve  Faithfully  Came 
Near  Meaning  the  Gallows. 

No  men  have  rendered  more  faithful  service  to  the  Govern¬ 
ment  of  the  United  States  in  our  western  country  than  the 
members  of  the  native  Indian  police  force,  which  on  most  of  the 
agencies  has  been  organized  to  serve  as  a  constabulary,  under 
the  orders  of  the  Indian  Agent.  These  men  have  proved  them¬ 
selves  susceptible  of  thorough  discipline,  they  have  shown  a 
remarkable  sense  of  responsibility,  and  in  no  case  known  to  us 
have  they  betrayed  their  trust.  Where  commanded  by  a  strong- 
superior,  in  whom  they  could  have  confidence,  they  have  often 
shown  distinguished  courage — even  heroism.  The  case  of  the 
arrest  of  Sitting  Bull  during  the  Sioux  outbreak  of  1890,  where 
seven  Indian  policemen  heroically  sacrificed  their  lives  in  the 
defence  of  the  Government,  will  come  to  mind  as  a  pertinent 
illustration  of  the  truth  of  this  claim.  That  another  seven  out 
of  this  native  force, — to  which  we  must  look  for  preservation  of 
the  peace  of  the  border, — should  have  narrowly  escaped  death 
for  fidelity  to  duty,  not  at  the  hands  of  crazed  fanatics  of  their 
own  race,  nor  in  honorable  battle,  but  by  the  machinations  of 
the  very  Government  they  served,  and  by  the  ignominy  of  the 


93 

I*f3  N 

3.ni  cJla  • 
flO  • 


nncmN  COLLEGE 


3  9031  027  48110  0 


hangman’s  noose; — for  coming  very  close  to  such  a  ghastly 
paradox  as  this,  we  must  thank  an  Attorney-General  of  the 
United  States !  It  might  naturally  be  supposed  that  in  this 
statement  we  did  Mr.  Olney  an  injustice,  but  an  examination  of 
the  facts  of  this  remarkable  case  will  make  it  clear  beyond 
contradiction  that  upon  him  principally  must  rest  responsibility 
for  a  wholly  uncalled  for  and  cruel  legal  process,  which,  if  suc¬ 
cessful,  would  have  taken  the  lives  of  seven  faithful  men,  and, 
which,  though  it  happily  resulted  in  failure,  has  nevertheless  put 
the  Government  to  great  expense,  which  will  cost  the  Indian 
Rights  Association  a  large  sum,  and  has  impoverished  the  un¬ 
fortunate  victims  of  the  scheme. 

Had  Mr.  Olney  acted  in  ignorance  of  the  facts,  or  upon  mis¬ 
representations  of  legal  subordinates,  whose  malicious  purpose 
he  had  not  the  means  of  discovering,  we  should  regret  the 
matter  as  a  misfortune,  but  should  attach  no  personal  blame  to 
him.  But  the  action  which  he  authorized  against  these  Indian 
policemen  was  taken  in  spite  of  a  respectful  and  courteous 
statement  of  the  facts  of  the  case  made  to  him  by  the  Com¬ 
missioner  of  Indian  Affairs,  through  the  Secretary  of  the 
Interior;  it  was  persisted  in,  notwithstanding  the  fullest  per¬ 
sonal  explanation  of  the  equities  of  the  case  made  by  the  Agent 
of  this  Association,  Mr.  Francis  E.  Leupp.  The  Attorney- 
General’s  conception  of  his  official  duty  in  the  matter  seems  to 
have  led  him  to  determine  to  procure  a  conviction  of  the  un¬ 
fortunate  Indians,  if  the  machinery  of  the  law  could  be  forced 
to  accomplish  that  result,  though  the  well  authenticated  facts 
of  the  case,  justice  and  public  policy,  clearly  forbade  such 
action. 

This  pitiful  story  can,  perhaps,  best  be  given  by  publication  of 
a  series  of  appeals  and  letters,  in  which  it  is  narrated  chrono¬ 
logically.  The  following  explanatory  letter  was  to  have  been 
sent  to  influential  correspondents  when  it  seemed  as  though  the 


MAR  1  0  2000 


3 


only  way  to  save  the  Indians  was  to  ask  the  President,  in  case 
of  their  conviction,  to  pardon  them  :  — 

Dear  Sir  : 

The  Rev.  Edward  Ashley,  Episcopal  Missionary  on  the  Chey¬ 
enne  River  Agency,  S.  D.,  has  appealed  to  the  Association 
for  aid  on  behalf  of  three  Indian  policemen  who  under  orders 
from  their  Agent  undertook  to  arrest  a  white  “  squaw  man,” 
named  Fielder,  and  in  the  melee  which  resulted  from  his 
resistance,  shot  him  dead. 

The  facts  of  the  case  are  as  follows:  In  March,  1893,  these 
policemen  were  sent  by  the  Indian  Agent  to  arrest  Fielder  for  a 
most  brutal  assault  on  his  Indian  wife.  Fielder  resisted  arrest, 
and  attempted  to  kill  some  of  the  policemen,  who  shot  him  in 
self-defence.  An  informal  inquest  was  held  by  the  Agent,  and 
the  jury  summoned  found  that  “Fielder  came  to  his  death 
from  pistol  shots  fired  by  the  U.  S.  Indian  Police — firing  done 
in  self-defence,  while  Fielder  was  resisting  arrest  and  attempted 
to  kill  some  of  the  police.” 

The  Indian  Agent  made  his  report  to  the  Department.  All 
the  papers  in  the  case  were  referred  by  the  Secretary  of  the 
Interior  to  the  Attorney-General,  who  directed  the  U.  S.  Dis¬ 
trict  Attorney  for  South  Dakota  to  cause  a  thorough  investi¬ 
gation  to  be  made,  and  wrote  back  to  the  Secretary  of  the 
Interior:  “As  the  matter  is  presented,  it  would  seem  that  the 
killing  was  done  in  self-defence,  but  I  agree  with  *you  that  so 
serious  a  thing  should  not  be  passed  without  inquiry  by  the 
Courts.”  The  District  Attorney  for  South  Dakota  reported  to 
the  Attorney-General — 

“As  soon  as  I  learned  of  the  killing  of  Fielder,  I  investigated 
the  matter,  and  although  I  was  satisfied  that  the  Indian  police 
had  not  been  guilty  of  any  crime  in  connection  with  Fielder’s 
death,  I  thought  that  a  judicial  investigation  ought  to  be  had, 
and  accordingly  had  all  the  Indian  police  concerned  arrested 


4 


and  brought  before  a  Commissoner.  On  the  hearing  before 
the  Commissioner,  the  defendants  were  bound  over  to  await 
the  action  of  the  Grand  Jury,  which  convened  at  Pierre  on 
March  28.  The  case  was  there  presented  to  the  Grand  Jury, 
and,  after  a  thorough  investigation,  a  return  of  *  No  bill  found  ’ 
was  made.  In  my  judgment,  no  blame  can  be  attached  to  the 
Agent,  and  none  to  the  Indian  police,  except,  perhaps,  that 
they  were  too  hasty  in  their  action.” 

In  transmitting  this  letter  to  the  Secretary  of  the  Interior, 
Attorney-General  Olney  remarked — 

“  You  will  observe  that  the  matter  was  investigated  by  the 
Grand  Jury  and  no  bill  found,  since  it  appeared  that  the  killing 
was  done  in  self-defence.” 

This  was  in  the  Spring  of  1893.  Nothing  more  was  heard  of 
the  matter  until  November  26th,  1894,  when  a  deputy  marshal 
visited  the  Cheyenne  River  Agency  and  arrested  three  of  the 
Indian  police  concerned  in  the  Fielder  fight.  He  took  them 
before  U.  S.  Commissioner  Hoover  at  Gettysburg,  S.  D.,  who 
held  them  for  the  action  of  the  next  Federal  Grand  Jury  at  Dead- 
wood,  to  be  held  in  February,  1895.  In  the  meantime  Agent 
Lillibridge  had  given  place  to  a  new  appointee,  Mr.  Coucnman. 
It  appears  that  the  latter  after  an  investigation  of  the  affair  was 
entirely  satisfied  with  the  action  of  Mr.  Lillibridge  and  with  the 
position  of  the  Indian  police  in  the  Fielder  matter.  In  report¬ 
ing,  on  November  29th,  last,  the  arrest  of  his  police,  he  wrote 
* 

to  Commissioner  Browning — 

11  I  would  respectfully  state  that  this  revival  of  a  matter  that 
has  already  been  investigated  and  presumably  long  settled  by 
the  civil  authorities,  has  anything  but  a  good  effect  upon  the 
affairs  of  this  Agency.  The  policemen  who  are  involved  in  this 
most  unfortunate  case  are  the  best  men  I  have  on  the  force,  and 
always  cheerfully  and  promptly  obey  their  orders,  and  are  very 
careful  not  to  go  beyond  them  or  exceed  their  authority  in  any 
way.” 


5 


The  Washington  correspondent  of  the  New  York  Evening  Post, 
in  referring  to  this  matter  says  (March  7th,  1895) — 

“Any  one  who  knows  the  Indian  country,  the  Indian  charac¬ 
ter,  and  the  service  of  the  Indian  police,  need  not  be  told  that 
Mr.  Couchman  had  undoubtedly  the  right  view.  At  the  Depart¬ 
ment  of  Justice,  however,  knowledge  of  these  conditions  is  ex¬ 
ceedingly  scarce.  It  seems  to  have  been  enough  for  the  Attorney- 
General  that  a  new  Democratic  District  Attorney,  who  from  all 
accounts  was  a  gentleman  of  the  strictly  South-Dakotan  frontier 
type,  had  found  it  convenient  to  satisfy  the  cravings  of  a  popu¬ 
lace  always  ready  to  condemn  a  4 - Indian’  with  or  without  a 

hearing,  by  raking  up  a  matter  nearly  two  years  old  and  dragging 
the  defendants  nine  hundred  miles  to  a  court  when  there  were 
three  very  much  nearer.  Federal  courts  are  held  at  Pierre,  fifty- 
five  miles  down  the  river  from  the  Agency;  at  Aberdeen,  one 
hundred  and  twenty-five  miles  distant  by  rail ;  and  at  Sioux  Falls, 
about  two  hundred  and  twenty-five  miles  away.  But  Deadwood, 
nine  hundred  miles  from  the  spot  where  the  homicide  occurred, 
was  chosen  as  the  one  place  in  the  State  for  subjecting  these  men 
to  trial  by  ‘  a  jury  of  the  vicinage’  ! 

“  Besides  the  three  first  arrested,  the  remaining  four  were 
brought  in  later.  The  Agent  was  resolved  to  see  his  police 
through  their  trouble,  and  Commissioner  Browning  cordially 
approved  his  course,  directing,  by  authority  of  Secretary  Smith, 
that  proper  counsel  should  be  procured,  as  the  poor  fellows  on 
trial  were  without  means  to  employ  any.  The  court  appointed 
two  local  lawyers  to  defend  the  accused  without  pay,  but  what 
further  assistance  the  agent  was  able  to  procure  has  not  yet  been 
ascertained.  It  is  supposed  that  the  trial  is  now  on. 

“In  a  report  to  the  Commissioner,  under  date  of  February 
2 2d,  Agent  Couchman  wrote:  — 

“  ‘.I  cannot  too  strongly  represent  the  moral  effect  of  forcing 
these  police  to  stand  trial  for  an  act  which  they  consider  but  the 
performance  of  their  duty.  Their  ideas  of  the  workings  of  our 
courts  will  not  be  improved  if  they  are  thus  harassed  and  perse¬ 
cuted,  and  the  good  order  and  discipline  of  all  the  Sioux  reser¬ 
vations  will  be  prejudiced  thereby.’ 

“This  appeal,  together  with  evidence  laid  before  him  that  the 


6 


Grand  Jury  had  found  their  indictment  upon  an  insufficient 
inquiry  into  the  facts,  induced  Commissioner  Browning  to  ask 
to  have  the  case  nolle-prosequied.  The  Attorney  General  was 
unwilling  to  make  such  an  order.  In  response  to  an  inquiry 
from  the  Evening  Post1  s  correspondent  as  to  why  he  had  per¬ 
mitted  the  case  to  go  to  trial,  he  said:  ‘The  District 'Attorney 
reported  to  me  that  he  believed  he  could  now  secure  a  convic¬ 
tion,  and  I  wired  him  to  go  ahead.’  When  asked  whether  it 
would  not  have  been  consistent  with  his  duty  to  look  into  the 
merits  of  the  case  before  authorizing  the  District  Attorney  to 
proceed,  he  answered  that  the  Indian  Office  had  made  a  repre¬ 
sentation  of  the  case  to  him,  but  he  did  not  feel  justified  in 
ordering  a  nolle  pros,  when  his  District  Attorney  was  on  the 
spot  and  presumptively  knew  what  he  was  about.  He  had  no 
explanation  to  offer  of  the  reason  why  these  Indians  should  be 
taken  900  miles  away  from  their  reservation  when  there  were 
three  other  courts  within  vastly  easier  reach,  nor  had  He  any¬ 
thing  to  say  in  response  to  the  reminder  that  Deadwood  juries 
are  notorious  for  their  disregard  of  an  Indian’s  rights  where  a 
white  man  is  in  any  way  concerned. 

“If  the  accused  Indians  are  found  guilty  on  insufficient  testi¬ 
mony  and  any  harm  comes  to  them,  we  are  likely  to  see  another 
and  very  serious  upheaval  in  the  Sioux  country.  Not  only  will 
the  Indians  generally  be  incited  to  a  race  war,  but  both  Indians 
and  lawless  whites  will  be  impressed  with  a  contempt  for  the 
Indian  police  service,  feeling  sure  that  they  can  commit  any 
sort  of  offence  with  impunity,  because  they  will  have  only  to 
resist  arrest  with  violence  and  then  go  to  see  their  would-be 
captors  punished  by  the  Federal  courts.  If  all  this  comes  about, 
Mr.  Olney  may  feel  justified,  toward  the  latter  end  of  his  official 
career,  in  looking  more  carefully  into  the  merits  of  a  case  before 
turning  the  judicial  machinery  of  the  Government  against  its  own 
generally  faithful  servants.” 

In  a  letter  written  by  the  Rev.  Mr.  Ashley  from  Deadwood, 
S.  D.,  under  date  of  March  6th,  he  states:  — 

“  I  have  always  taken  the  ground,  from  the  evidence,  that  the 
Police  did  their  duty  in  this  matter.  Afterwards  when  they 


7 


were  taken  before  the  U.  S.  Commissioner  at  Pierre,  he  took  the 
same  viewof  it,  though,  to  quiet  all  parties  concerned  turned 
them  over  to  the  Grand  Jury.  They  found  no  bill  against  them 
and  they  were  discharged.  It  is  not  presumed  that  they  have 
found  new  evidence,  and  hence  have  summoned  men  from  For¬ 
est  City,  who  now  claim  to  know  everything  about  the  case, 
claiming  to  have  seen  the  transaction  through  a  field  glass.  In¬ 
deed,  they  know  more  than  those  of  us  who  were  right  there, 
and  knew  all  the  facts.  *  *  *  The  friends  of  the  police  believe 
that  the  present  move  is  a  scheme  to  make  money.  They  have 
nineteen  witnesses,  and  of  these  only  one  or  two  know  anything, 
and  they,  I  think,  will  testify  as  much  for  the  defence  as  for  the 
prosecution.  Some  of  us  were  summoned  here,  as  we  supposed, 
to  testify  before  the  Grand  Jury,  but  we  were  not  allowed  to  do 
so.  The  Indian  witnesses  who  testified  before  the  Jury  had  their 
statements  interpreted  by  the  half-breed,  above  mentioned,  in¬ 
stead  of  by  the  official  interpreter.  This  was  done  at  the  in¬ 
stance  of  the  District  Attorney.” 

“When  we  first  came  here  we  tried  to  have  the  Indian 
Department  ffirnish  money  for  the  defence,  as  the  attorneys  we 
applied  to  would  not  take  the  case  for  less  than  $1,000,  but 
the  Office  could  not.  We  then  succeeded  in  having  Judges 
Burns  and  Bennett  appointed  by  the  Court,  on  our  paying  them 
$200  as  a  retaining  fee.  This  I  paid  them  myself.  Recently  the 
attorneys  desired  us  to  obligate  ourselves  for  a  further  amount. 
*  *  *  *  Your  telegram  came  opportunely,  and  while  I  have 

not  told  them  just  how  much  the  Association  would  furnish,  I 
have  informed  them  that  it  would  help.  They  are  good 
attorneys,  I  think,  and  will,  I  believe,  be  earnest  in  their  efforts 
to  secure  an  acquittal.” 

On  receipt  of  this  information  a  telegram  was  sent  to  Mr. 
Ashley  stating  that  this  Association  would  be  responsible  for 
securing  competent  counsel  to  defend  these  Indians,  as  they  were 
wholly  without  means  to  procure  it. 

That  the  lives  of  these  policemen  should  be  imperilled  through 
a  faithful  performance  of  their  duty  is  outrageous,  and  calls  for  a 
most  emphatic  protest  from  all  lovers  of  justice. 


8 


t 


Should  the  case  be  decided  against  the  Indians,  every  effort 
will  be  made  to  secure  a  pardon  from  the  President.  •  A  petition 
is  now  being  prepared  for  such  use,  if  necessary,  and  copies  will 
be  sent  you  shortly.  I  trust  you  will  do  all  in  your  power  to 
secure  the  signatures  of  influential  men  and  women  to  this  peti¬ 
tion  and  return  it  to  this  office  at  your  earliest  convenience. 

Very  truly  yours, 

Herbert  Welsh, 

Corresponding  Secretary . 


The  foregoing  statement  was  prepared  when  the  lives  of  the 
Indian  police  were  in  imminent  peril.  Had  a  verdict  of  guilty 
been  rendered  against  them,  the  efforts  of  this  Association  would 
have  been  directed  toward  obtaining  a  pardon  from  the  Presi¬ 
dent,  which  the  circumstances  of  the  case,  in  our  judgment, 
would  doubtless  have  secured.  Just  as  this  appeal  was  about  to 
be  issued  information  was  received  by  telegram  from  Mr.  Ashley 
stating  that  five  of  the  Indian  police  were  acquitted  and  two 
were  held  to  answer  charges  for  assault  “with  intent  to  do  great 
bodily  harm.”  Since  then  the  following  interesting  letter  has 
been  received  from  Bishop  Hare,  which  sets  forth  more  recent 
developments  in  this  important  case. 

The  Indian  Rights  Association  guaranteed  compensation  for 
the  attorneys  whom  it  was  necessary  to  engage  for  the  defence 
of  these  accused  Indians.  The  circumstances  of  the  case  fully 
warranted  such  an  expenditure  on  our  part,  though  the  tax  upon 
our  resources  is  a  severe  and  unusual  one.  We  could  not  stand 
by  silent  and  see  officers  of  the  government  put  in  peril  of  their 
lives  for  doing  their  plain  duty  to  the  Government,  without  ex¬ 
erting  ourselves  to  the  utmost  to  save  them.  In  this  we  have 
succeeded.  What  judgment  an  intelligent  public  opinion,  cog¬ 
nizant  of  the  facts,  should  pass  upon  those  other  officers  of  the 
Government  whose  deliberate  action  thus  imperilled  the  lives  of 


9 


these  humble  men,  we  do  not  pretend  to  say.  That  must  be  de¬ 
termined  by  the  court  of  public  opinion  itself.  It  is  not  the 
first  time  that  this  Association,  which  acts  simply  as  a  represen¬ 
tative  of  sound  public  sentiment  and  of  Indian  Rights,  has  been 
obliged  to  pay  bills  which,  under  any  fair  moral  interpretation, 
should  have  been  paid  by  the  Government  itself. 

“Sioux  Falls,  S.  Dakota,  March  19,  1895. 
“My  Dear  Mr.  Welsh: — 

“  Mr.  Ashley  spent  last  night  here  on  his  way  home  from  the 
trial  of  the  seven  Indian  police. 

“The  police  came  off  practically  victorious,  the  verdict  dis¬ 
charging  five,  and  holding  two  on  a  minor  charge,  ‘  assault  with 
intent  to  do  bodily  harm,’  of  which  it  is  doubtful  whether  any- 
thing  can  be  made. 

“But  it  was  a  prolonged  and  desperate  contest,  and  heavy  as 
is  the  burden  which  will  fall  upon  the  Indian  Rights  Associ¬ 
ation,  viz.,  $700.00,  I  feel  that  the  emergency  justifies  it. 
*  *  *  *  The  case  had  been  investigated  in  1893,  under 

the  late  U.  S.  District  Attorney,  W.  B.  Sterling,  a  man  of 
high  ability  and  standing  in  his  profession.  *  No  bill  was 
found/  and  Mr.  Sterling  reported  to  the  Attorney-General, 
‘  In  my  judgment,  no  blame  can  be  attached  to  the  Agent,  and 
none  to  the  Indian  police,  except,  perhaps,  that  they  were  too 
hasty  in  their  action.’ 

“  Why  was  the  case  not  allowed  to  rest  ? 

“It  excited  indignation  and  alarm  among  certain  classes; 
for,  if  Indian  police  under  order  of  a  U.  S.  Agent  were  justified 
in  arresting  Fielder,  even  if  in  the  effort  his  death  ensued,  then 

“  (a)  White  men  could  be  arrested  by  ‘ - — -  ’  Indians,  a 

proposition  most  obnoxious  to  a  certain  class  of  the  border 
population. 

“  (£)  Then  there  was  a  power  that  could  reach  a  certain  par¬ 
ticular  class  of  Squaw  men.  Many  Squaw  men  are  quiet,  ex¬ 
cellent  men  ;  but  there  is  a  drinking,  lawless,  almost  desperate 
class,  who,  in  their  retreats  on  Indian  Reservations,  distant  from 
settlements,  think  they  can  there  violate  law  out  of  reach  of  the 
operation  of  ordinary  justice. 


IO 


“The  case  of  Fielder,  who  was  a  man  of  this  class,  alarmed 
these  men  and  rallied  them  in  an  effort  to  down  the  Indian  po¬ 
lice.  No  wonder. 

“  But  many  do  wonder  why  it  was  that  such  a  cause  was  taken 
up  with  such  alacrity  and  zeal  by  the  representatives  of  the  De¬ 
partment  of  Justice. 

“  A  reliable  gentleman  who  was  frequently  present  during  the 
proceedings  writes  me  as  follows,  and  I  know  he  does  not  stand 
alone  in  the  opinions  which  he  expresses. 

“  ‘  The  trial  of  the  Indian  Police  is  over.  Five  are  acquitted, 
two  held  on  some  minor  charge;  the  opinion  seems  to  be  that 
these  latter  two  will  be  set  free.  Mr.  Ashley  has  worked  inces¬ 
santly,  and  I  have  not  the  slightest  doubt  that  had  he  not  been  on 
the  ground  all  seven  of  the  police  would  have  been  convicted  of 
murder.  There  was  nothing  that  was  not  done  to  vex  and  insult 
him ;  there  was  no  little,  mean,  contemptible,  underhanded 
trick  that  was  not  resorted  to  in  order  to  convict  the  men.  All 
these  matters  you  will  talk  over  with  Dean  Ashley,  but  the  half 
will  never  be  told.  We  have  been  very  sad  for  fear  of  what 
might  happen  to  those  poor  fellows  at  the  hands — (not  of  the 
public,  not  of  the  sentiment  of  the  public — for  every  one  I  have 
heard  speak  of  it  has  expressed  the  same  view  and  belief ;  ‘  they 
are  policemen,  and  they  did  their  duty,  and  we  should  like  to  see 
a  few  more  of  these  Squaw  men  run  down.  It  is  they  who  create 
all  the  trouble  on  the  reservations’) — but  at  the  hands  of  such 
men  as  Miller  and  Van  Buskirk,  who  regard  neither  honor  nor 
sincerity,  who  stop  short  at  nothing  (no,  not  even  seven  quiet, 
orderly,  faithful  men’s  lives )  that  they  may  gain  their  point.’ 

“  ‘  It  is  time  the  Government  of  these  United  States  provide 
military  courts-martial  for  the  trial  of  such  men  as  these,  who 
are  her  most  efficient  military  force  in  these  Indian  countries, 
and  not  expect  them  to  do  their  duty,  and,  after  doing  it,  have 
to  spend  every  dollar  they  have  to  save  their  necks.  *These  men 
should  be  especially  commended  for  their  loyal  obedience  to 
orders  and  assured  in  the  future  of  loyal  support  of  the  Govern¬ 
ment.  Unless  this  is  done,  who  is  to  live  in  this  country? 
What  assurance  is  there  of  protection  to  those  who  live  near 
reservations  ?  ’ 

“In  the  same  line  as  the  evidence  of  this  letter  falls  the  fol¬ 
lowing  which  I  clip  from  a  Deadwood  paper  and  which  also  ap¬ 
peared  in  a  telegram  to  the  Argus  Leader  of  Sioux  Falls: — 

“  ‘  When  the  jury  in  the  Straight  Head  et  al.  case  returned  its 
first  verdict,  yesterday,  finding  five  of  the  defendants  not  guilty, 


and  two,  Straight  Head  and  Scares  the  Hawk,  “guilty  of  assault 
with  intent  to  do  great  bodily  harm,”  it  was  found  by  the  court 
to  be  defective  in  form,  and  the  court  directed  the  United  States 
attorney  to  draw  the  verdict  up  in  due  form.  Assistant  United 
States  Attorney  Van  Buskirk  performed  the  task,  and  it  was  handed 
to  the  jury.  The  jury  retired,  and  the  foreman  was  about  to  sign 
the  verdict  when  it  was  discovered  that  instead  of  finding  the  two 
defendants  guilty  of  assault  with  intent  to  do  great  bodily  harm, 
as  the  first  verdict  read,  the  attorney  had  made  it  read  “guilty  of 
assault  with  intent  to  kill.”  This  attempt  at  sharp  practice 
and  imposition  upon  the  jury  aroused  a  very  just  storm  of  disgust 
and  indignation  in  the  minds  of  the  jury,  and  had  the  case  not 
been  already  passed  upon,  a  speedy  and  total  acquittal  would 
have  resulted. 

“  ‘The  spurious  Van  Buskirk  verdict*  was  handed  to  Judge 
Burns,  with  the  suggestion  that  it  be  presented  to  Judge  Dundy, 
and  this  will  probably  yet  be  done. 

“  ‘The  importance  of  the  change  attempted  by  the  govern¬ 
ment  attorneys  will  be  apparent  when  it  is  understood  that  as¬ 
sault  with  intent  to  kill  is  an  offence  under  the  Federal  statutes 
punishable  by  imprisonment  in  the  penitentiary,  whereas  assault 
with  intent  to  do  great  bodily  harm,  as  intended  by  the  jury,  is 
probably  not  punishable  at  all  by  any  law  of  the  United  States. 
The  inference  seems  fair  that  it  was  supposed  the  jury  in  their 
anxiety  to  be  discharged  from  the  case,  would  sign  the  verdict 
hastily  and  without  noticing  the  change.  If  such  was  the  case 
it  was  unworthy  the  attorneys  for  the  government.’ 

“  Very  sincerely  yours, 

“  W.  H.  Hare.” 


*  Mr.  Ashley  saw  this  verdict : — W.  H.  Hare. 


*' 

. 


V. 


; 

. 


■ 


' 


' 


*.  • 


,  » 


,* 


. 


. 


■ 


. 


* 

*  .  ,  ^  '4 


I 


